a v. People , 2020 CO 63M ( 2020 )

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
June 22, 2020
AS MODIFIED July 27, 2020
2020 CO 63M
No. 19SC453, Archuleta v. People—Criminal Law—Juror Unanimity—
Modified Unanimity Instruction—Election—Child Abuse.
In this case involving a charge of child abuse resulting in death, the supreme
court must determine whether the defendant was entitled to a modified unanimity
instruction requiring that the jurors either unanimously agree that she committed
the same act or acts underlying the child abuse charge or that she committed all of
those acts. Because the prosecution charged and tried this case on the theory that
the defendant had committed the offense at issue by engaging in a single criminal
transaction resulting in the child’s death, and because (in light of the prosecution’s
theory) the supreme court sees no reasonable likelihood that the jurors disagreed
on which specific act caused the child’s death, the court concludes that the
defendant was not entitled to a modified unanimity instruction here.
The court therefore reverses the judgment of the division below and
remands this case to the court of appeals for consideration of the defendant’s
remaining contentions on appeal.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 63M
Supreme Court Case No. 19SC453
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA0407
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Sandra Archuleta.
Judgment Reversed
en banc
June 22, 2020
Opinion modified, and as modified, petition for rehearing DENIED. EN
BANC.
July 27, 2020
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Jennifer L. Carty, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Colorado State Public Defender
Joseph Paul Hough, Deputy State Public Defender
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case, along with People v. Wester-Gravelle, 2020 CO 64, __ P.3d __, which
we are also deciding today, requires us to consider when a trial court must give
the jury a so-called “modified unanimity instruction.” Specifically, in this tragic
case involving a charge of child abuse resulting in death, we must determine
whether the defendant, Sandra Archuleta, was entitled to a modified unanimity
instruction requiring that the jurors either unanimously agree that she committed
the same act or acts underlying the child abuse charge or that she committed all of
those acts.1 Because the prosecution charged and tried this case on the theory that
Archuleta had committed the offense at issue by engaging in a single criminal
transaction resulting in the child’s death, and because (in light of the prosecution’s
theory) we see no reasonable likelihood that the jurors disagreed on which specific
act caused the child’s death, we conclude that Archuleta was not entitled to a
modified unanimity instruction here.
1 Specifically, we granted certiorari to review the following issue:
Whether the court of appeals erred in finding a modified unanimity
instruction was required by statute in a child abuse resulting in death
case where the offense is defined as a course of conduct, and it was
charged and argued as a single transaction.
2
¶2 Accordingly, we reverse the judgment of the division below, and we
remand this case to the court of appeals for consideration of Archuleta’s remaining
contentions on appeal. .
I. Facts and Procedural History
¶3 Archuleta took care of her four-month-old grandson, D.A., for one week.
Several hours after D.A.’s mother picked him up, she returned to Archuleta’s
home with D.A. Archuleta noticed that D.A. did not appear to be breathing, so
she attempted CPR and called 911. First responders arrived shortly thereafter and
transported D.A. to the hospital, but he died the following morning. An autopsy
revealed that D.A. had been suffering from dehydration and a bacterial infection
that had started as pneumonia and that had spread to his blood.
¶4 The prosecution subsequently charged Archuleta with one count of “child
abuse resulting in death,” alleging that she caused D.A.’s death over the course of
the week in which she took care of him. Specifically, the Complaint and
Information alleged:
Between and including July 27, 2015 and August 2, 2015, Sandy
Archuleta unlawfully, feloniously, knowingly, or recklessly caused
an injury to, or permitted to be unreasonably placed in a situation that
posed a threat of injury to, the life or health of a child, namely: [D.A.],
or engaged in a continued pattern of conduct that resulted in
malnourishment, lack of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries, that resulted in the
death of the child; in violation of section 18-6-401(1)(a), (7)(a)(I), C.R.S.
3
¶5 The case proceeded to trial, and at trial, the prosecution’s evidence showed
that when D.A.’s mother dropped him off at Archuleta’s house at the beginning of
the week, he was healthy. By the end of the week, however, D.A. was suffering
from numerous injuries, including chemical burns on his forehead, nose, cheek,
mouth, lips, ear, and knee, a torn frenulum (i.e., the flap of skin between the upper
gum and lip), several broken ribs, and what appeared to be tweezer pinch marks
all over his body. In addition, he was suffering from pneumonia, dehydration,
and an infection in his bloodstream. The coroner who performed the autopsy on
D.A. estimated that the chemical burns were approximately forty-eight to
seventy-two hours old at the time of the autopsy and that the broken ribs were
also forty-eight to seventy-two hours old “but certainly less than two weeks.” The
coroner could not estimate, however, when the torn frenulum occurred.
¶6 The coroner opined that each of D.A.’s injuries contributed to his death and
that the ultimate cause of death was the combination of those injuries and the
neglect in seeking help and getting enough food and liquid to him, which the
coroner believed led to the infection and dehydration. Specifically, the coroner
explained that the rib injuries limited D.A.’s ability to breathe and clear his lungs
properly and that this assisted the pneumonia in “getting a better grip on him.”
In addition, the coroner believed that D.A.’s inability to breathe and the pain that
he was experiencing probably limited his ability to nurse or use a bottle, resulting
4
in dehydration. And the coroner stated that the mouth and frenulum injuries
further contributed to D.A.’s poor feeding and intake, which also contributed to
his dehydration.
¶7 At the close of the evidence, Archuleta asked the court to order the
prosecution to elect a theory of prosecution, given that the prosecution had
charged multiple theories of child abuse. The court denied this request, however,
apparently agreeing with the prosecution’s assertion that it did not need to elect a
theory as long as the court made clear to the jury that the prosecution was required
to prove beyond a reasonable doubt each element of the offense, even if an element
could have been established by alternative means.
¶8 Archuleta then requested that the court give the jury a so-called “modified
unanimity instruction,” and she tendered an instruction that would have required
the jury to agree unanimously that she had committed the same act or acts that
constituted the offense of child abuse. Archuleta’s tendered instruction would
further have advised the jurors that the prosecution had alleged multiple theories
of prosecution and that, in order to convict, the jurors were required to agree on
the theory of guilt. The court declined this request as well, relying on the same
rationale that it had given for refusing to require the prosecution to elect a theory
of prosecution. The court did, however, agree to provide the jury with
interrogatories requiring the jurors to state whether they unanimously found
5
beyond a reasonable doubt that the child abuse resulted in (1) D.A.’s death,
(2) serious bodily injury to D.A., or (3) non-serious bodily injury to him.
¶9 The parties proceeded to present their closing arguments, and, as pertinent
here, the prosecutor addressed the fourth element in the elemental instruction for
child abuse, which required the prosecution to prove that Archuleta
caused an injury to a child’s life or health, or permitted a child to be
unreasonably placed in a situation that posed a threat of injury to the
child’s life or health, or engaged in a continued pattern of conduct
that resulted in malnourishment, lack of proper medical care, cruel
punishment, mistreatment or an accumulation of injuries.
¶10 The prosecutor told the jury that this element “has some options sort of
within it, so it could be one of these, two of these, all three.” The prosecutor
immediately added, however, “[I]n this case really when you think about it she’s
done all three of these things.” Consistent with this, the prosecutor ended his
closing argument by reminding the jury that the coroner had testified that “the
cause of death is injuries and neglect leading to infection and dehydration, and
dehydration and pneumonia are the products of several different things. You can
sort of just follow the chain of events from these injuries.” The prosecutor thus
argued that D.A.’s death “is a direct result of the injuries that [Archuleta] inflicted”
and that the jurors
can think of it a little bit like a road that [D.A.] followed over the
course of that week, a road that ends at his death. Each of the injuries
[Archuleta] inflicted upon [D.A.], each of the conditions he developed
6
are stops on that road. If you follow each of those backwards from
his death, that road leads back to her, to her abuse and her neglect.
¶11 Notably, in defense counsel’s closing, counsel did not dispute that the
prosecution was proceeding on a theory that all of D.A.’s injuries combined to
cause his death. To the contrary, counsel acknowledged that the prosecution’s
theory was that “all of these injuries happened and they resulted in death.”
Counsel argued, however, that the prosecution had not proved beyond a
reasonable doubt that Archuleta had inflicted any life-threatening injuries on D.A.,
much less caused his death.
¶12 The jury found Archuleta guilty, unanimously determining in the
interrogatories submitted to it that Archuleta’s child abuse resulted in D.A.’s
death, serious bodily injury, and non-serious bodily injury. The trial court
subsequently sentenced Archuleta to twenty-four years in the Department of
Corrections.
¶13 Archuleta then appealed, arguing, among other things, that the trial court
had erred in denying her request for a modified unanimity instruction. In a
published opinion, the division agreed with Archuleta, reversed her conviction,
and remanded for a new trial. People v. Archuleta, 2019 COA 64, ¶¶ 43–44, __ P.3d
__.
¶14 In so ruling, the division acknowledged that the prosecution had charged
Archuleta with one count of child abuse resulting in death, but the division
7
observed that the charge included each of the three methods of committing child
abuse set forth in the child abuse statute, section 18-6-401(1)(a), C.R.S. (2019).
Archuleta, ¶¶ 12–21. Moreover, the division noted that the prosecution had argued
to the jury that it could find Archuleta guilty based on any of these three theories.
Id. at ¶ 21. And the division pointed out that the prosecution had presented
evidence of multiple acts of child abuse, any one of which could have established
that Archuleta (1) caused an injury to D.A.’s life or health or (2) permitted D.A. to
be unreasonably placed in a situation that posed a threat of injury to his life or
health. Id. at ¶ 22. In these circumstances, the division concluded that a modified
unanimity instruction was necessary. Id.
¶15 In so holding, the division was unpersuaded by the fact that the prosecution
had also alleged that Archuleta had engaged in a continued pattern of conduct
that resulted in injuries that led to D.A.’s death. The division observed that had
the prosecution pursued only this theory, a modified unanimity instruction might
not have been required. Id. at ¶ 32. But in the division’s view, the prosecution had
not done so. Id. Accordingly, the division concluded that the trial court had erred
in refusing to give the jury a modified unanimity instruction, and perceiving that
this error was not harmless, the division reversed Archuleta’s conviction and
remanded the case for a new trial. Id. at ¶¶ 33–43.
8
¶16 The People then petitioned this court for certiorari review, and we granted
that petition.
II. Analysis
¶17 We begin by addressing the law pertinent to juror unanimity and the child
abuse statute. We then apply the law to the facts before us and conclude that the
division erred in concluding that a modified unanimity instruction was required
on the facts of this case.
A. Juror Unanimity
¶18 The People contend that the division erred in concluding that a modified
unanimity instruction was required here, notwithstanding the fact that the offense
of “child abuse resulting in death” is defined in part as encompassing a course of
conduct and the crime here was charged and presented as a single transaction. In
so arguing, the People ask us to adopt a four-part test that they propose, based on
statements contained in case law from this court and from our court of appeals,
and they further ask us to adopt what they characterize as a “continuous crime
exception” to the juror unanimity requirement.
¶19 We decline the People’s invitation to craft what we perceive to be extensive
new law in this area. Nonetheless, applying longstanding principles of law
relating to the requirement of juror unanimity, we ultimately agree with the
9
People that the division erred in concluding that a modified unanimity instruction
was required on the facts of this case.
¶20 In Colorado, a criminal defendant is entitled to a unanimous jury verdict.
§ 16-10-108, C.R.S. (2019); Crim. P. 23(a)(8); Crim. P. 31(a)(3). Unanimity in a
verdict is required, however, “only with respect to the ultimate issue of the
defendant’s guilt or innocence of the crime charged and not with respect to
alternative means by which the crime was committed.” People v. Taggart, 621 P.2d
1375, 1387 n.5 (Colo. 1981). Thus, as the Supreme Court has long established, a
jury need not unanimously decide “which of several possible sets of underlying
brute facts make up a particular element” or “which of several possible means the
defendant used to commit an element of the crime.” Richardson v. United States,
526 U.S. 813, 817 (1999); see also United States v. Griggs, 569 F.3d 341, 343 (7th Cir.
2009) (“The law distinguishes between the elements of a crime, as to which the
jury must be unanimous, and the means by which the crime is committed.”);
People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“Generally, jurors need not
agree about the evidence or theory by which a particular element is established.”);
People v. Linares-Guzman, 195 P.3d 1130, 1134 (Colo. App. 2008) (noting that the
requirement of juror unanimity means only that each juror must agree that every
element of the crime charged has been proved beyond a reasonable doubt).
10
¶21 When, however, the prosecution presents evidence of multiple discrete acts,
any one of which would constitute the offense charged, and there is a reasonable
likelihood that jurors will disagree regarding which act was committed, then the
People may be compelled to select the transaction on which they are relying for a
conviction. Quintano v. People, 105 P.3d 585, 592–93 (Colo. 2005); Thomas v. People,
803 P.2d 144, 153–54 (Colo. 1990); Laycock v. People, 182 P. 880, 881 (Colo. 1919).
¶22 Alternatively, the defendant may be entitled to a special jury instruction,
which has come to be called a “modified unanimity instruction,” advising the
jurors that in order to convict the defendant, they “must either unanimously agree
that the defendant committed the same act or acts or that the defendant committed
all of the acts described by the victim and included within the time period
charged.” Thomas, 803 P.2d at 153–54.
¶23 Neither a prosecutorial election nor a modified unanimity instruction is
required, however, when a defendant is charged with engaging in a single
transaction of criminal conduct and the prosecution proceeds at trial on that basis.
See Melina v. People, 161 P.3d 635, 641–42 (Colo. 2007) (considering a solicitation
charge and concluding that no unanimity instruction was required when the
prosecution did not present two discrete, mutually exclusive, and independent
crimes of solicitation but rather the evidence and the prosecution’s theory of the
case were that the defendant had engaged in a single transaction of solicitation to
11
murder another person); see also Vigil, 251 P.3d at 447 (noting that jurors need not
agree about the evidence or theory by which a particular element is established,
nor are they required to agree unanimously on the theory that supports a single
conviction of theft).
¶24 The foregoing election requirement “protects the defendant’s right to a
unanimous verdict by assuring that some jurors do not convict on one offense and
others on a separate offense; it also enables adequate defense preparation.”
Quintano, 105 P.3d at 593. The requirement thus serves both to give the defendant
a meaningful opportunity to prepare a defense and to assure juror unanimity. Id.
¶25 Turning then to the child abuse statute, that statute provides, in pertinent
part:
A person commits child abuse if such person causes an injury to a
child’s life or health, or permits a child to be unreasonably placed in
a situation that poses a threat of injury to the child’s life or health, or
engages in a continued pattern of conduct that results in
malnourishment, lack of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries that ultimately results in
the death of a child or serious bodily injury to a child.
§ 18-6-401(1)(a).
¶26 Accordingly, under this statute, a person can commit child abuse in one of
three ways: (1) the person “causes an injury to a child’s life or health”; (2) the
person “permits a child to be unreasonably placed in a situation that poses a threat
of injury to the child’s life or health”; or (3) the person “engages in a continued
12
pattern of conduct that results in malnourishment, lack of proper medical care,
cruel punishment, mistreatment, or an accumulation of injuries that ultimately
results in the death of a child or serious bodily injury to a child.” Id. The first two
of these methods of committing child abuse refer to specific acts of abuse. See id.
The third, in contrast, refers to a pattern of conduct ultimately resulting in the
child’s death or in serious bodily injury to the child. See id.
¶27 In Friend v. People, 2018 CO 90, ¶ 19, 429 P.3d 1191, 1195, we concluded that
“the child abuse statute prescribes a single crime of child abuse that can be
committed in alternate ways,” and not multiple distinct crimes of child abuse.
B. Application To The Facts Before Us
¶28 Consistent with the above-described principles, the prosecution charged
Archuleta with a single count of “child abuse resulting in death.” And although
the prosecution noted for the jury that the crime of child abuse can be committed
in three ways and that Archuleta’s conduct here “could be one of these, two of
these, all three,” ultimately, the prosecution tried this case as involving a single
pattern of conduct resulting in D.A.’s death. Thus, as noted above, the prosecution
introduced testimony from the coroner that the cause of D.A.’s death was the
combination of his injuries and neglect in seeking help and getting enough food
and liquid to him, which resulted in a bacterial infection that had spread to his
blood and dehydration. The prosecution further introduced evidence to show that
13
all of D.A.’s injuries, and in particular the chemical burns, torn frenulum, and
broken ribs, contributed to his death. And in closing argument, the prosecution
emphasized that Archuleta’s conduct amounted to a chain of events that resulted
in D.A.’s death.
¶29 The question before us thus becomes whether, in these circumstances,
absent an election by the prosecution as to the particular method of abuse on which
it was relying, Archuleta was entitled to a modified unanimity instruction. In
addressing this question, we note, as a preliminary matter, that it is arguable that
this case does not even implicate any issue regarding a prosecutorial election or
the need for a modified unanimity instruction. As noted above, the child abuse
statute creates one offense of child abuse, and it would have been perfectly
appropriate for the jurors to rely on different evidence to establish the elements of
that offense. See Richardson, 526 U.S. at 817; Griggs, 569 F.3d at 343; Vigil, 251 P.3d
at 447; Linares-Guzman, 195 P.3d at 1134.
¶30 The People, however, do not appear to have made (or at least developed)
such an argument. Nor need we decide this case on that basis because even if the
principle that jurors may rely on different evidence to establish an element of an
offense were inapplicable to the child abuse statute, we conclude that a modified
unanimity instruction was not required on the facts before us.
14
¶31 As set forth above, the prosecution is not required to elect the method of
committing the crime at issue, nor is a modified unanimity instruction mandated,
when the prosecution charges a defendant with engaging in a single criminal
transaction and then proceeds on that basis at trial. See Melina, 161 P.3d at 641–42.
That is precisely what the prosecution did here. It charged one count of “child
abuse resulting in death” based on a series of discrete acts, and the prosecution’s
evidence—and particularly the coroner’s testimony—established that each of
these discrete acts contributed to and together ultimately caused D.A.’s death.
¶32 In this regard, we view this case as factually similar to the circumstances
that we considered in Friend, ¶¶ 5–8, 429 P.3d at 1193–94, also a child abuse case,
although we acknowledge that the legal issues that we addressed there are
different from those presented here. In Friend, the evidence established that the
defendant had committed a number of acts of abuse against the child victim. See
id. at ¶ 6, 429 P.3d at 1193. The prosecution, however, treated the defendant’s
abuse of the victim as one pattern of conduct resulting in the victim’s death, rather
than as multiple patterns and discrete offenses. Id. at ¶ 8, 429 P.3d at 1193. In light
of the foregoing, we ultimately concluded that the prosecution did not prove that
the defendant had committed separate crimes of child abuse but rather had proved
only one count of child abuse resulting in death based on a pattern of conduct. Id.
at ¶ 24, 429 P.3d at 1196. The same is true in this case.
15
¶33 Moreover, on the facts presented here, and given how the prosecution
presented this case, we perceive no reasonable likelihood that the jurors would
have disagreed on which act established the charged offense. Rather,
notwithstanding isolated comments by the prosecution to the contrary, the record
reflects that the prosecution tried this case as involving one pattern or transaction
of abuse resulting in D.A.’s death. In addition, the interrogatories completed by
the jury indicated that the jurors unanimously found that Archuleta had
committed all of the underlying acts charged. And as noted above, in closing
argument, Archuleta’s counsel did not dispute that the prosecution had proceeded
on a theory that all of D.A.’s injuries combined to cause his death but rather
defended on the ground that the prosecution had failed to carry its burden of
proving beyond a reasonable doubt that Archuleta had inflicted any of the injuries
that ultimately resulted in D.A.’s death.
¶34 For these reasons, we conclude that Archuleta was not entitled to a modified
unanimity instruction here. See Melina, 161 P.3d at 641–42 (noting that a unanimity
instruction was not required when the prosecution’s theory of the case was that
the defendant had engaged in a single transaction of solicitation to commit the
murder of another person and the prosecution’s evidence supported that theory).
16
III. Conclusion
¶35 Because the prosecution charged and presented this case on a theory that
Archuleta had committed the offense at issue by engaging in a single criminal
transaction resulting in D.A.’s death, and because (in light of the prosecution’s
theory) we see no reasonable likelihood that the jurors disagreed on which specific
act caused D.A.’s death, we conclude that Archuleta was not entitled to a modified
unanimity instruction on the facts of this case.
¶36 Accordingly, we reverse the judgment of the division below, and we
remand this case for consideration of Archuleta’s remaining contentions on
appeal.
17
Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
June 22, 2020
AS MODIFIED July 27, 2020
2020 CO 63M
No. 19SC453, Archuleta v. People—Criminal Law—Juror Unanimity—
Modified Unanimity Instruction—Election—Child Abuse.
In this case involving a charge of child abuse resulting in death, the supreme
court must determine whether the defendant was entitled to a modified unanimity
instruction requiring that the jurors either unanimously agree that she committed
the same act or acts underlying the child abuse charge or that she committed all of
those acts. Because the prosecution charged and tried this case on the theory that
the defendant had committed the offense at issue by engaging in a single criminal
transaction resulting in the child’s death, and because (in light of the prosecution’s
theory) the supreme court sees no reasonable likelihood that the jurors disagreed
on which specific act caused the child’s death, the court concludes that the
defendant was not entitled to a modified unanimity instruction here.
The court therefore reverses the judgment of the division below and
remands this case to the court of appeals for consideration of the defendant’s
remaining contentions on appeal. with instructions to reinstate the defendant’s
conviction on one count of child abuse resulting in death.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 63M
Supreme Court Case No. 19SC453
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA0407
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Sandra Archuleta.
Judgment Reversed
en banc
June 22, 2020
Modified Opinion. Marked revisions shown.
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Jennifer L. Carty, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Colorado State Public Defender
Joseph Paul Hough, Deputy State Public Defender
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case, along with People v. Wester-Gravelle, 2020 CO 64, __ P.3d __, which
we are also deciding today, requires us to consider when a trial court must give
the jury a so-called “modified unanimity instruction.” Specifically, in this tragic
case involving a charge of child abuse resulting in death, we must determine
whether the defendant, Sandra Archuleta, was entitled to a modified unanimity
instruction requiring that the jurors either unanimously agree that she committed
the same act or acts underlying the child abuse charge or that she committed all of
those acts.1 Because the prosecution charged and tried this case on the theory that
Archuleta had committed the offense at issue by engaging in a single criminal
transaction resulting in the child’s death, and because (in light of the prosecution’s
theory) we see no reasonable likelihood that the jurors disagreed on which specific
act caused the child’s death, we conclude that Archuleta was not entitled to a
modified unanimity instruction here.
¶2 Accordingly, we reverse the judgment of the division below, and we
remand this case to the court of appeals for consideration of Archuleta’s remaining
1 Specifically, we granted certiorari to review the following issue:
Whether the court of appeals erred in finding a modified unanimity
instruction was required by statute in a child abuse resulting in death
case where the offense is defined as a course of conduct, and it was
charged and argued as a single transaction.
2
contentions on appeal. with instructions to reinstate Archuleta’s conviction on one
count of child abuse resulting in death.
I. Facts and Procedural History
¶3 Archuleta took care of her four-month-old grandson, D.A., for one week.
Several hours after D.A.’s mother picked him up, she returned to Archuleta’s
home with D.A. Archuleta noticed that D.A. did not appear to be breathing, so
she attempted CPR and called 911. First responders arrived shortly thereafter and
transported D.A. to the hospital, but he died the following morning. An autopsy
revealed that D.A. had been suffering from dehydration and a bacterial infection
that had started as pneumonia and that had spread to his blood.
¶4 The prosecution subsequently charged Archuleta with one count of “child
abuse resulting in death,” alleging that she caused D.A.’s death over the course of
the week in which she took care of him. Specifically, the Complaint and
Information alleged:
Between and including July 27, 2015 and August 2, 2015, Sandy
Archuleta unlawfully, feloniously, knowingly, or recklessly caused
an injury to, or permitted to be unreasonably placed in a situation that
posed a threat of injury to, the life or health of a child, namely: [D.A.],
or engaged in a continued pattern of conduct that resulted in
malnourishment, lack of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries, that resulted in the
death of the child; in violation of section 18-6-401(1)(a), (7)(a)(I), C.R.S.
¶5 The case proceeded to trial, and at trial, the prosecution’s evidence showed
that when D.A.’s mother dropped him off at Archuleta’s house at the beginning of
3
the week, he was healthy. By the end of the week, however, D.A. was suffering
from numerous injuries, including chemical burns on his forehead, nose, cheek,
mouth, lips, ear, and knee, a torn frenulum (i.e., the flap of skin between the upper
gum and lip), several broken ribs, and what appeared to be tweezer pinch marks
all over his body. In addition, he was suffering from pneumonia, dehydration,
and an infection in his bloodstream. The coroner who performed the autopsy on
D.A. estimated that the chemical burns were approximately forty-eight to
seventy-two hours old at the time of the autopsy and that the broken ribs were
also forty-eight to seventy-two hours old “but certainly less than two weeks.” The
coroner could not estimate, however, when the torn frenulum occurred.
¶6 The coroner opined that each of D.A.’s injuries contributed to his death and
that the ultimate cause of death was the combination of those injuries and the
neglect in seeking help and getting enough food and liquid to him, which the
coroner believed led to the infection and dehydration. Specifically, the coroner
explained that the rib injuries limited D.A.’s ability to breathe and clear his lungs
properly and that this assisted the pneumonia in “getting a better grip on him.”
In addition, the coroner believed that D.A.’s inability to breathe and the pain that
he was experiencing probably limited his ability to nurse or use a bottle, resulting
in dehydration. And the coroner stated that the mouth and frenulum injuries
4
further contributed to D.A.’s poor feeding and intake, which also contributed to
his dehydration.
¶7 At the close of the evidence, Archuleta asked the court to order the
prosecution to elect a theory of prosecution, given that the prosecution had
charged multiple theories of child abuse. The court denied this request, however,
apparently agreeing with the prosecution’s assertion that it did not need to elect a
theory as long as the court made clear to the jury that the prosecution was required
to prove beyond a reasonable doubt each element of the offense, even if an element
could have been established by alternative means.
¶8 Archuleta then requested that the court give the jury a so-called “modified
unanimity instruction,” and she tendered an instruction that would have required
the jury to agree unanimously that she had committed the same act or acts that
constituted the offense of child abuse. Archuleta’s tendered instruction would
further have advised the jurors that the prosecution had alleged multiple theories
of prosecution and that, in order to convict, the jurors were required to agree on
the theory of guilt. The court declined this request as well, relying on the same
rationale that it had given for refusing to require the prosecution to elect a theory
of prosecution. The court did, however, agree to provide the jury with
interrogatories requiring the jurors to state whether they unanimously found
5
beyond a reasonable doubt that the child abuse resulted in (1) D.A.’s death,
(2) serious bodily injury to D.A., or (3) non-serious bodily injury to him.
¶9 The parties proceeded to present their closing arguments, and, as pertinent
here, the prosecutor addressed the fourth element in the elemental instruction for
child abuse, which required the prosecution to prove that Archuleta
caused an injury to a child’s life or health, or permitted a child to be
unreasonably placed in a situation that posed a threat of injury to the
child’s life or health, or engaged in a continued pattern of conduct
that resulted in malnourishment, lack of proper medical care, cruel
punishment, mistreatment or an accumulation of injuries.
¶10 The prosecutor told the jury that this element “has some options sort of
within it, so it could be one of these, two of these, all three.” The prosecutor
immediately added, however, “[I]n this case really when you think about it she’s
done all three of these things.” Consistent with this, the prosecutor ended his
closing argument by reminding the jury that the coroner had testified that “the
cause of death is injuries and neglect leading to infection and dehydration, and
dehydration and pneumonia are the products of several different things. You can
sort of just follow the chain of events from these injuries.” The prosecutor thus
argued that D.A.’s death “is a direct result of the injuries that [Archuleta] inflicted”
and that the jurors
can think of it a little bit like a road that [D.A.] followed over the
course of that week, a road that ends at his death. Each of the injuries
[Archuleta] inflicted upon [D.A.], each of the conditions he developed
6
are stops on that road. If you follow each of those backwards from
his death, that road leads back to her, to her abuse and her neglect.
¶11 Notably, in defense counsel’s closing, counsel did not dispute that the
prosecution was proceeding on a theory that all of D.A.’s injuries combined to
cause his death. To the contrary, counsel acknowledged that the prosecution’s
theory was that “all of these injuries happened and they resulted in death.”
Counsel argued, however, that the prosecution had not proved beyond a
reasonable doubt that Archuleta had inflicted any life-threatening injuries on D.A.,
much less caused his death.
¶12 The jury found Archuleta guilty, unanimously determining in the
interrogatories submitted to it that Archuleta’s child abuse resulted in D.A.’s
death, serious bodily injury, and non-serious bodily injury. The trial court
subsequently sentenced Archuleta to twenty-four years in the Department of
Corrections.
¶13 Archuleta then appealed, arguing, among other things, that the trial court
had erred in denying her request for a modified unanimity instruction. In a
published opinion, the division agreed with Archuleta, reversed her conviction,
and remanded for a new trial. People v. Archuleta, 2019 COA 64, ¶¶ 43–44, __ P.3d
__.
¶14 In so ruling, the division acknowledged that the prosecution had charged
Archuleta with one count of child abuse resulting in death, but the division
7
observed that the charge included each of the three methods of committing child
abuse set forth in the child abuse statute, section 18-6-401(1)(a), C.R.S. (2019).
Archuleta, ¶¶ 12–21. Moreover, the division noted that the prosecution had argued
to the jury that it could find Archuleta guilty based on any of these three theories.
Id. at ¶ 21. And the division pointed out that the prosecution had presented
evidence of multiple acts of child abuse, any one of which could have established
that Archuleta (1) caused an injury to D.A.’s life or health or (2) permitted D.A. to
be unreasonably placed in a situation that posed a threat of injury to his life or
health. Id. at ¶ 22. In these circumstances, the division concluded that a modified
unanimity instruction was necessary. Id.
¶15 In so holding, the division was unpersuaded by the fact that the prosecution
had also alleged that Archuleta had engaged in a continued pattern of conduct
that resulted in injuries that led to D.A.’s death. The division observed that had
the prosecution pursued only this theory, a modified unanimity instruction might
not have been required. Id. at ¶ 32. But in the division’s view, the prosecution had
not done so. Id. Accordingly, the division concluded that the trial court had erred
in refusing to give the jury a modified unanimity instruction, and perceiving that
this error was not harmless, the division reversed Archuleta’s conviction and
remanded the case for a new trial. Id. at ¶¶ 33–43.
8
¶16 The People then petitioned this court for certiorari review, and we granted
that petition.
II. Analysis
¶17 We begin by addressing the law pertinent to juror unanimity and the child
abuse statute. We then apply the law to the facts before us and conclude that the
division erred in concluding that a modified unanimity instruction was required
on the facts of this case.
A. Juror Unanimity
¶18 The People contend that the division erred in concluding that a modified
unanimity instruction was required here, notwithstanding the fact that the offense
of “child abuse resulting in death” is defined in part as encompassing a course of
conduct and the crime here was charged and presented as a single transaction. In
so arguing, the People ask us to adopt a four-part test that they propose, based on
statements contained in case law from this court and from our court of appeals,
and they further ask us to adopt what they characterize as a “continuous crime
exception” to the juror unanimity requirement.
¶19 We decline the People’s invitation to craft what we perceive to be extensive
new law in this area. Nonetheless, applying longstanding principles of law
relating to the requirement of juror unanimity, we ultimately agree with the
9
People that the division erred in concluding that a modified unanimity instruction
was required on the facts of this case.
¶20 In Colorado, a criminal defendant is entitled to a unanimous jury verdict.
§ 16-10-108, C.R.S. (2019); Crim. P. 23(a)(8); Crim. P. 31(a)(3). Unanimity in a
verdict is required, however, “only with respect to the ultimate issue of the
defendant’s guilt or innocence of the crime charged and not with respect to
alternative means by which the crime was committed.” People v. Taggart, 621 P.2d
1375, 1387 n.5 (Colo. 1981). Thus, as the Supreme Court has long established, a
jury need not unanimously decide “which of several possible sets of underlying
brute facts make up a particular element” or “which of several possible means the
defendant used to commit an element of the crime.” Richardson v. United States,
526 U.S. 813, 817 (1999); see also United States v. Griggs, 569 F.3d 341, 343 (7th Cir.
2009) (“The law distinguishes between the elements of a crime, as to which the
jury must be unanimous, and the means by which the crime is committed.”);
People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“Generally, jurors need not
agree about the evidence or theory by which a particular element is established.”);
People v. Linares-Guzman, 195 P.3d 1130, 1134 (Colo. App. 2008) (noting that the
requirement of juror unanimity means only that each juror must agree that every
element of the crime charged has been proved beyond a reasonable doubt).
10
¶21 When, however, the prosecution presents evidence of multiple discrete acts,
any one of which would constitute the offense charged, and there is a reasonable
likelihood that jurors will disagree regarding which act was committed, then the
People may be compelled to select the transaction on which they are relying for a
conviction. Quintano v. People, 105 P.3d 585, 592–93 (Colo. 2005); Thomas v. People,
803 P.2d 144, 153–54 (Colo. 1990); Laycock v. People, 182 P. 880, 881 (Colo. 1919).
¶22 Alternatively, the defendant may be entitled to a special jury instruction,
which has come to be called a “modified unanimity instruction,” advising the
jurors that in order to convict the defendant, they “must either unanimously agree
that the defendant committed the same act or acts or that the defendant committed
all of the acts described by the victim and included within the time period
charged.” Thomas, 803 P.2d at 153–54.
¶23 Neither a prosecutorial election nor a modified unanimity instruction is
required, however, when a defendant is charged with engaging in a single
transaction of criminal conduct and the prosecution proceeds at trial on that basis.
See Melina v. People, 161 P.3d 635, 641–42 (Colo. 2007) (considering a solicitation
charge and concluding that no unanimity instruction was required when the
prosecution did not present two discrete, mutually exclusive, and independent
crimes of solicitation but rather the evidence and the prosecution’s theory of the
case were that the defendant had engaged in a single transaction of solicitation to
11
murder another person); see also Vigil, 251 P.3d at 447 (noting that jurors need not
agree about the evidence or theory by which a particular element is established,
nor are they required to agree unanimously on the theory that supports a single
conviction of theft).
¶24 The foregoing election requirement “protects the defendant’s right to a
unanimous verdict by assuring that some jurors do not convict on one offense and
others on a separate offense; it also enables adequate defense preparation.”
Quintano, 105 P.3d at 593. The requirement thus serves both to give the defendant
a meaningful opportunity to prepare a defense and to assure juror unanimity. Id.
¶25 Turning then to the child abuse statute, that statute provides, in pertinent
part:
A person commits child abuse if such person causes an injury to a
child’s life or health, or permits a child to be unreasonably placed in
a situation that poses a threat of injury to the child’s life or health, or
engages in a continued pattern of conduct that results in
malnourishment, lack of proper medical care, cruel punishment,
mistreatment, or an accumulation of injuries that ultimately results in
the death of a child or serious bodily injury to a child.
§ 18-6-401(1)(a).
¶26 Accordingly, under this statute, a person can commit child abuse in one of
three ways: (1) the person “causes an injury to a child’s life or health”; (2) the
person “permits a child to be unreasonably placed in a situation that poses a threat
of injury to the child’s life or health”; or (3) the person “engages in a continued
12
pattern of conduct that results in malnourishment, lack of proper medical care,
cruel punishment, mistreatment, or an accumulation of injuries that ultimately
results in the death of a child or serious bodily injury to a child.” Id. The first two
of these methods of committing child abuse refer to specific acts of abuse. See id.
The third, in contrast, refers to a pattern of conduct ultimately resulting in the
child’s death or in serious bodily injury to the child. See id.
¶27 In Friend v. People, 2018 CO 90, ¶ 19, 429 P.3d 1191, 1195, we concluded that
“the child abuse statute prescribes a single crime of child abuse that can be
committed in alternate ways,” and not multiple distinct crimes of child abuse.
B. Application To The Facts Before Us
¶28 Consistent with the above-described principles, the prosecution charged
Archuleta with a single count of “child abuse resulting in death.” And although
the prosecution noted for the jury that the crime of child abuse can be committed
in three ways and that Archuleta’s conduct here “could be one of these, two of
these, all three,” ultimately, the prosecution tried this case as involving a single
pattern of conduct resulting in D.A.’s death. Thus, as noted above, the prosecution
introduced testimony from the coroner that the cause of D.A.’s death was the
combination of his injuries and neglect in seeking help and getting enough food
and liquid to him, which resulted in a bacterial infection that had spread to his
blood and dehydration. The prosecution further introduced evidence to show that
13
all of D.A.’s injuries, and in particular the chemical burns, torn frenulum, and
broken ribs, contributed to his death. And in closing argument, the prosecution
emphasized that Archuleta’s conduct amounted to a chain of events that resulted
in D.A.’s death.
¶29 The question before us thus becomes whether, in these circumstances,
absent an election by the prosecution as to the particular method of abuse on which
it was relying, Archuleta was entitled to a modified unanimity instruction. In
addressing this question, we note, as a preliminary matter, that it is arguable that
this case does not even implicate any issue regarding a prosecutorial election or
the need for a modified unanimity instruction. As noted above, the child abuse
statute creates one offense of child abuse, and it would have been perfectly
appropriate for the jurors to rely on different evidence to establish the elements of
that offense. See Richardson, 526 U.S. at 817; Griggs, 569 F.3d at 343; Vigil, 251 P.3d
at 447; Linares-Guzman, 195 P.3d at 1134.
¶30 The People, however, do not appear to have made (or at least developed)
such an argument. Nor need we decide this case on that basis because even if the
principle that jurors may rely on different evidence to establish an element of an
offense were inapplicable to the child abuse statute, we conclude that a modified
unanimity instruction was not required on the facts before us.
14
¶31 As set forth above, the prosecution is not required to elect the method of
committing the crime at issue, nor is a modified unanimity instruction mandated,
when the prosecution charges a defendant with engaging in a single criminal
transaction and then proceeds on that basis at trial. See Melina, 161 P.3d at 641–42.
That is precisely what the prosecution did here. It charged one count of “child
abuse resulting in death” based on a series of discrete acts, and the prosecution’s
evidence—and particularly the coroner’s testimony—established that each of
these discrete acts contributed to and together ultimately caused D.A.’s death.
¶32 In this regard, we view this case as factually similar to the circumstances
that we considered in Friend, ¶¶ 5–8, 429 P.3d at 1193–94, also a child abuse case,
although we acknowledge that the legal issues that we addressed there are
different from those presented here. In Friend, the evidence established that the
defendant had committed a number of acts of abuse against the child victim. See
id. at ¶ 6, 429 P.3d at 1193. The prosecution, however, treated the defendant’s
abuse of the victim as one pattern of conduct resulting in the victim’s death, rather
than as multiple patterns and discrete offenses. Id. at ¶ 8, 429 P.3d at 1193. In light
of the foregoing, we ultimately concluded that the prosecution did not prove that
the defendant had committed separate crimes of child abuse but rather had proved
only one count of child abuse resulting in death based on a pattern of conduct. Id.
at ¶ 24, 429 P.3d at 1196. The same is true in this case.
15
¶33 Moreover, on the facts presented here, and given how the prosecution
presented this case, we perceive no reasonable likelihood that the jurors would
have disagreed on which act established the charged offense. Rather,
notwithstanding isolated comments by the prosecution to the contrary, the record
reflects that the prosecution tried this case as involving one pattern or transaction
of abuse resulting in D.A.’s death. In addition, the interrogatories completed by
the jury indicated that the jurors unanimously found that Archuleta had
committed all of the underlying acts charged. And as noted above, in closing
argument, Archuleta’s counsel did not dispute that the prosecution had proceeded
on a theory that all of D.A.’s injuries combined to cause his death but rather
defended on the ground that the prosecution had failed to carry its burden of
proving beyond a reasonable doubt that Archuleta had inflicted any of the injuries
that ultimately resulted in D.A.’s death.
¶34 For these reasons, we conclude that Archuleta was not entitled to a modified
unanimity instruction here. See Melina, 161 P.3d at 641–42 (noting that a unanimity
instruction was not required when the prosecution’s theory of the case was that
the defendant had engaged in a single transaction of solicitation to commit the
murder of another person and the prosecution’s evidence supported that theory).
16
III. Conclusion
¶35 Because the prosecution charged and presented this case on a theory that
Archuleta had committed the offense at issue by engaging in a single criminal
transaction resulting in D.A.’s death, and because (in light of the prosecution’s
theory) we see no reasonable likelihood that the jurors disagreed on which specific
act caused D.A.’s death, we conclude that Archuleta was not entitled to a modified
unanimity instruction on the facts of this case.
¶36 Accordingly, we reverse the judgment of the division below, and we
remand this case for consideration of Archuleta’s remaining contentions on
appealwith instructions to reinstate Archuleta’s conviction on one count of child
abuse resulting in death.
17